A thoughtful article from Colorado-based Chris Forsyth, who shares his thoughts on Colorado’s judicial retention elections, and how they are heavily influenced by negligible rates of attorneys effectively disciplined for misconduct and the lack of open records in Colorado’s court cases.

Are you really going to defer to 109 lawyers and judges? That’s what the state performance commission wants you to do. Seriously. That’s how many surveys were used to determine the retention recommendation for the only Colorado Supreme Court Justice up for retention this year – William Hood.

33 of those surveys were completed by attorneys. 76 of the surveys were completed by district and appellate judges. So more than two-thirds of the surveys were completed by other judges. No surveys were sent to or completed by the general public or any litigants whose cases were heard by Hood. And no public hearings were held to get public input regarding Hood.

He started serving as a Supreme Court Justice in January 2014. He received an interim evaluation in 2015. That report was based on 44 completed surveys. All the surveys were completed by attorneys. No surveys were sent to or completed by the general public or any litigants whose cases were heard by Hood. And again, no public hearings were held to get public input.

So his evaluation is completely based on aggregate totals from surveys. Aggregate totals gloss over specific instances of conduct which might create concern about a judge. In the 2015 survey, 2% of attorneys recommended against retention. This year, 9% recommended against retention. Nevertheless, the performance commission has recommended that he be retained.

There are more than 5 million people in Colorado. There are more that 3.7 million registered voters in Colorado. More than 2,000 cases have crossed Hood’s desk since he was appointed to the Supreme Court. Yet his performance evaluation is based on 109 completed surveys in 2016 and 44 completed surveys in 2015. He makes statewide public policy through the cases he decides, yet neither you, nor any other member of the general public, were asked by the state performance commission for your opinion.

We do know that the state performance commission did not consider Hood’s vote to adopt the Supreme Court rule making the judicial branch the darkest of Colorado’s 3 branches of government. That’s because they completely relied on the surveys.

Hood, along with the other justices, refused to apply Colorado’s Open Records Act to the judicial branch and legislated a dark standard for the judicial branch. Such a selfish decision by a judge is arguably a violation of the Code of Judicial Conduct. Hiding information from the public certainly doesn’t foster confidence in the judiciary. Yet the state performance commission didn’t even consider his decision to adopt the rule. Singular acts of judges should be sufficient to make a commission take pause in recommending retention.

And did you know that the state performance commission is chaired by Heather Hanneman? She’s a lawyer whose firm was paid to oppose The Honest Judge Amendment, which would make judicial discipline proceedings public upon a finding of probable cause. At present, such proceedings are confidential. That means no performance commission that’s advising you on whether to retain a judge knows whether the judge they’re recommending for retention has been disciplined.

Let’s repeat that fact: No performance commission that’s advising you on whether to retain a judge knows whether the judge they’re recommending for retention has been disciplined.

Yet the chair of the state commission — who’s legislatively mandated to provide you with fair and responsible evaluations about judges — worked against you receiving discipline information about judges. Wouldn’t it be more fair and responsible if all the performance commissions simply told you that they don’t have sufficient information to provide you with a recommendation? How is it fair or responsible for them to recommend retention when they don’t know whether the judges they are recommending to be retained have been disciplined?

If the performance commissions were really complying with their legislative mandate, wouldn’t they be pursuing the Honest Judge Amendment?

And in regard to the performance commissions, The Judicial Integrity Project tried to get a bill through the legislature last session that would have mandated public hearings on judges, required public reports on judges every two years, and provided more thorough evaluations on judges including background checks. Yet the judges, who aren’t supposed to be political, fought the bill with the assistance of leadership of the bar association. Many judges maintain their membership with Colorado’s voluntary bar association.

The executive director of the state performance commission openly stated the commission’s opposition to the bill. He thought the bill created too much work. Former justice Rebecca Kourlis also opposed the bill but had a hard time criticizing any particular aspect of the bill. She tried to say we don’t have any issue with our judges or our performance commissions. In contrast, almost 20 people testified in support of the bill. Yet the bill died by one vote in a “kill” committee.

Judges know that voters, one after another, will walk into the voting booth in November and vote to retain judges that the voter knows nothing about. That’s exactly what happens every year. It will happen again this year. And that’s why the system isn’t changing.

If you want to change the game, you should vote to not retain. If you like the current system, you should vote to retain every judge.

So based on 109 surveys this year that were mostly completed by other judges, and none of which were completed by the general public, the public will “follow” the recommendation of the state performance commission and vote to retain Hood in November. Other judges will receive the same benefit of the doubt. The state performance commission will then continue to claim that the system works.